The Spotlight Shifts to the DOJ Inspector General

As Daphna Renan and David Pozen note, Deputy Attorney General Rod Rosenstein’s memorandum to Attorney General Sessions on Comey’s action last summer, which was the ostensible basis for firing FBI Director James Comey, circumvented the ongoing investigation into Comey’s actions by DOJ Inspector General Michael Horowitz. That investigation, and Horowitz himself, are now about to assume center stage in the Comey firing drama.

Horowitz is a former prosecutor (an AUSA in SDNY from 1991 to 1999) who was nominated for the DOJ IG slot by President Obama and has served in that role for five years. He is the chairman of the Council of the Inspectors General on Integrity and Efficiency, which advises and develops standards for inspectors general across executive branch departments. He is probably best known to date for his highly critical 514-page report on the “Fast and Furious” program run by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In January 2017, Horowitz announced that he was opening an investigation into Comey’s handling of the Clinton email investigation. According to the one-page OIG announcement, the investigation will include (among other topics) “[a]llegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, the FBI Director’s public announcement July 5, 2016, and the Director’s letters to Congress on October 28 and November 6, 2016, and that certain underlying investigative decisions were based on improper considerations.”

In response to the Horowitz investigation, Comey stated: “I want that inspection because I want my story told.” Comey has also described Horowitz as “professional and independent.” And that is his general reputation.

Horowitz’s investigation into Comey’s behavior is ongoing. It is bound to uncover a lot of facts we don’t yet know about, and to reach richer and more complex conclusions than the ones in Rosenstein’s slapdash memorandum. Since the Rosenstein memorandum was the supposed basis for the President’s firing of Comey, the Horowitz investigation has the potential to undermine, or call into question, the basis for that firing. The investigation thus raises a number of intriguing questions, including:

How might Attorney General Sessions and his Deputy Rosenstein react if Horowitz discerns facts or reaches conclusions about Comey’s behavior that are contrary to or in tension with Rosenstein’s memorandum? Might they try to shut down the investigation or prevent the release of its conclusions? The IG Act provides that “[n]either the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing an audit or investigation, or from issuing any subpoena during the course of any audit or investigation.” But 5 U.S.C. app. § 8E also says that the Attorney General can assert supervision and control over DOJ IG “audits or investigations, or the issuance of subpoenas, which require access to sensitive information concerning,” among others, “ongoing civil or criminal investigations or proceedings,” “intelligence or counterintelligence matters,” or “other matters the disclosure of which would constitute a serious threat to national security.” Will Sessions or Rosenstein invoke these provisions to shut down Horowitz?

How will President Trump react once he realizes that the reasons for his decision to fire Comey will potentially be second-guessed by an Obama appointee? Will he fire Horowitz as he did Obama appointees Sally Yates and James Comey? Three months ago Jeffrey Toobin worried that Trump might shut down the IG investigation. But now the stakes of the investigation, and the potential downsides of allowing it to reach completion, are much larger.

If Trump decides to fire Horowitz, will he abide by the IG statute’s requirement that he give Congress 30 days’ notice before doing so, during which period Horowitz could continue to gather facts on the matter? Or will he follow the 1977 OLC opinion that concluded that the restriction was unconstitutional?

Will Horowitz accept House Oversight Chairman Jason Chaffetz’s request to investigate the firing of James Comey? If he does, will Trump and Sessions allow it to continue? The Inspector General Statute authorizes the IG to investigate at least the DOJ side of the firing, which could reveal a lot of truthful detail about the President’s decision. Sessions, Rosenstein, or Trump might not like that.

Senator Grassley counseled critics of the Comey firing to “suck it up and move on.” But Senator Grassley is also a famous supporter of inspectors general. And indeed, on November 2, he wrote a letter to Horowitz calling on him to intercede in the investigation into Hillary Clinton. Grassley wrote: “The public’s lack of confidence in the Justice Department’s ability to handle investigations related to former Secretary of State Hillary Clinton impartially ought to be of grave concern for its leadership. The entire matter is in desperate need of independent, objective, non-partisan oversight. As the Inspector General, that is your statutory duty.” Will Senator Grassley stand by this position, or will he now counsel Horowitz to suck it up and move on?

These and many other questions are now in play in connection with the more-important-than-ever DOJ Inspector General.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.